Article by Kalyani Kadam

Darkness does not win because it is strong. It wins because the lamps stop fighting.

A. INTRODUCTION

The land of our country has witnessed invasions and dissensions. Yet the said invasions have assimilated the idea of India into everyone who sought their providence, whether they came as merchants, travellers or as conquerors. In Faizabad district, Awadh, which is famous for its sunsets by the banks of the River Sharayu, has rich history and symbolism to find space in the writings of Tulsidas and Amir Khusrau. Buddha is said to have preached here. Jainism and Sikhism too have their imprint here. The Hindu-Muslim binary of the last century has however, left little space for this history and the identity of Ayodhya has been limited to it being the ground zero of the Ramjanmabhoomi-Babri Masjid dispute. We have entered the 75th year of India’s hard-won independence. Ironically, identifying what is ‘essentially religious’ to seeking and protecting only that which is ‘essential to religion’, this theme which has baffled the nation before 1947 and arose well before that time, and is still subject to premeditated and illogical mystification, which adjudicates a deeper understanding of the concept in the Indian context. However, the construction of the Ram temple has once again brought the question at CenterStage, ‘What constitutes Indian secularism?’. The verdict rendered by the Hon’ble Court may not have met the expectations of some, but one thing is very clear⁠, that both the parties are determined not to let the Hindu-Muslim bonhomie be a victim of the verdict.

The Ayodhya dispute is located neither solely within the institutions of the nation state, nor within networks of religious associations, but at the crossroads of secular and religious culture in India. At its heart lies the place of the Hindu deity Ram, who is constituted in law as a jural person. How do we understand the emergence of this jural deity in the dispute? Focusing on judgments that addressed the demolition of the Babri Mosque on 6 December 1992, the article argues that the legal evaluation of specific claims rested on a contest over asymmetric temporality. Prior to the demolition, judicial accounts referred to the site as a ‘disputed area’ or the ‘Ayodhya dispute’.

B. SHAPING OF INDIAN SECULARISM

The founding fathers of the Constitution gave us an enlightened, forward-looking basic law, which is not just a legal document but is aimed at bringing about socio-economic transformation in the country. Secularism is an important precept underlying the framework of fundamental rights. But, as in several other areas, there is a considerable divergence between the precept and the reality. Significantly, the Constituent Assembly failed to agree on the definition of the word “secular”. It also could not agree on calling the Constitution secular. It was only during the Emergency in 1976 that the word secular was introduced in the preamble to the Constitution by the highly controversial 42nd amendment. Secularism acquired a new status when the Supreme Court declared it as a part of the basic structure of the Constitution. Whenever the concept of secularism is under threat, this injunction of the Court is invoked. Secularism is thus more than a passive attitude of religious tolerance; it is a positive concept of equal treatment of all religions. This attitude is prescribed by some of neutrality towards religion or as one of benevolent neutrality. It is the triumph of rationality over unthinking fear, it is the emancipation of women and the upliftment of the oppressed.

Like the liberal democratic vision of secularism, Secularism in the constitution can then be seen to be characterized by three principles: (1) freedom of religion; (2) equality and non- discrimination; and (3) toleration. Toleration thus comes to displace neutrality that is present in the model of secularism based on a separation of religion and state as the third principle of secularism. Although there are some echoes to the principle of neutrality within constitutional discourse, these discussions tend to infuse the concept of neutrality with the spirit of ‘Sarva Dharma Samabhava’ or equal treatment of all religions. Neutrality to all religions tends not to be associated with a wall of separation, as it is in the American or French contexts, but rather with the idea that the State must not discriminate against any religion. It is this subtle but important shift from neutrality to toleration that captures the essence of the equal treatment of all religions vision of secularism in post-colonial India and its conceptualization of the appropriate relationship between religion and state. [1]In stark contrast to the liberal democratic model, which insists that the relationship must be characterized by non-intervention, the equal respect of all religions model allows for state intervention in religion, provided that such intervention is in accordance with the requirements of equality and freedom of religion. The meaning to be given to secularism in India depends to a large extent on the meaning given to each of these constituting principles. To some extent, the meaning of secularism turns on the meaning of equality. In law, Indian secularism has, to a large extent, been based on a more substantive approach to the principle of equal treatment and toleration of all religions, which has allowed for the protection of religious minority rights, including special provisions under the Constitution. This understanding of secularism as based on both religious tolerance and equal treatment of all religious groups, included an assurance of the protection of life, property, and places of worship for all religious groups.

C. CONSTITUTIONAL REFRAMERS

Introducing religion into politics is to introduce an impermissible element into body politic and an imbalance in our constitutional system. The Judicial Holdings on September 30, 2010, the decision in the Ayodhya land- holding case was delivered by a three-member bench of the Allahabad High Court, located in India’s western state of Uttar Pradesh, amidst tight security. The three judges included: Justice Khan, Justice Agarwal, who delivered the majority opinion; and Justice Sharma, who was the dissenting judge in the case. [2]The decision ran into a staggering 8,189 pages, the longest being 5,238 pages and delivered by Justice Agarwal. While there was no outbreak of public violence after the decision was pronounced, appeals were filed by all sides in the Supreme Court, reflecting considerable dissatisfaction over the ruling. On the specific issue of the right to freedom of religion, the Muslim parties did not advance any arguments based on the freedom of religion clauses. And Justice Khan was the only one of the three judges who did not address the arguments made in relation to Articles 25 and 26, but focused exclusively on the ‘issue of title’. Justice Khan held that neither party was able to demonstrate exclusive title to the disputed property. The available evidence indicated that by the middle of the eighteenth century there existed a mosque at the site and that by the middle of the nineteenth century Hindus were claiming that this site was the birthplace of Ram. Since 1855, both parties appeared to be in joint possession of the site. Justice Khan decided to divide the disputed property into three equal parts: one part was awarded to the Muslim parties; one part was given to the Hindu Idols, with the caveat that their part should include the land under the central dome; and one part was handed over to the Nirmohi Akhara with the caveat that their part should include the outer courtyard. Justice Khan based his decision on the issue of title and possession, rather than on considerations of the right to freedom of religion, although he recognised the significance of the site for Hindus.

Justice Khan’s decision to divide the property into three parts is curious and there is no real explanation for altering the situation from 1949 when the property was divided into two nearly equal parts between the Hindu and Muslim communities. In permitting the area under the central dome to be given over to the idols, the judge’s decision is contrary to the acknowledged fact that the idols had been placed there illegally and only in 1949. His decision placed the onus on the Muslim community to make all the necessary adjustments in relation to the dispute. Justice Agarwal accepted that there was a non-Islamic, ancient structure that stood where the mosque once stood. While the earlier structure appeared to be a Hindu religious place, the ruins could also be evidence of other non-Islamic traditions or practices. He also accepted that there was evidence of persistent practice as well as a strong belief on the part of Hindus that the disputed spot, particularly the spot under the central dome, was the birthplace of Ram. He thus implied that such persistent practice and faith was enough to deify the place and give it a juridical personality. Justice Agarwal addressed the issue of whether a deity has a right to file a suit, a right that was contingent on whether the idol had been properly consecrated and hence acquired a juristic personality. The Judge observed that a determination whether the idol had been properly consecrated could only be made according to the doctrine and belief of the respective religious denomination. In considering this issue, Justice Agarwal involved himself in the construction of Hindu tradition and belief. The Hindu parties contended that the entire site would be regarded as a temple and have a juristic personality. during the course of the proceedings, Justice Agarwal asked the Hindu parities whether the worship of rivers and hills by Hindus, would render all such places juristic persons? In response, the defendants stated: It is the belief of the Hindu people that the fort of King Dashrath situated at Ayodhya included the part of the building wherein Lord Rama was born according to Hindu belief and the disputed area covered that house.[3] It is believed that it is this place which is so pious and sacred for Hindu people being the birthplace of Lord Rama and, therefore, in this particular case, it is not necessary to go into larger question since it is not the claim of the Hindu parties that the entire city of Ayodhya or the entire locality is birthplace of Lord Rama. He was born at Ayodhya is a well-known fact. In Ayodhya, it is the disputed place where the Lord of Lords was manifested in the form of natural person and, therefore, it is believed to be the birthplace of Lord Rama by Hindus for time immemorial and they visit it to worship and Darshan. This satisfies the requirement of a ‘deity.’ He submits that ‘deity’ in the name of birthplace of Lord Rama is a legal person considering the concept of legal personality of Hindu deity. The Judge accepted this argument (while construing the spiritual nature of Hinduism) and held that, “if the public goes for worship considering that there is a divine presence and offer worship thereat believing that they are likely to be the recipient of the bounty of God then it satisfies the test of a temple. Installation of an idol or the mode of worship are not the relevant and conclusive test.” Justice Agarwal also held that the deity was a perpetual minor and therefore no claim of adverse possession could be made against the deity. For the same reason the suit on behalf of the Lord Ram filed in 1989 was not time-barred and a next of friend was entitled to represent the deity. Various Indian courts have recognised a temple deity as a legal entity and that even a devotee or a regular worshipper can move the court on behalf of the presiding deity. Justice Agarwal’s holding could have serious implications with regards to claims being made all over India in relation to Islamic structures and historical monuments. He also cited the right to freedom of religion and the view that the right to worship at the birthplace of Ram constituted a core ingredient of the Hindu faith. To allow a claim of adverse possession would extinguish a core feature of the religion and hence the religion itself, and would be contrary to the fundamental right of freedom of religion protected under articles 25 and 26 of the Constitution.[4] He further stated that while the state could acquire any property that belonged to a particular religious group for public purpose, it was refrained from doing so if the property was of ‘special significance’ to the community. Such state intervention would violate Article 26 that protected the essential features of a religion. Justice Agarwal thus held that, “Undoubtedly, Asthan Ram Janma Bhumi belongs to this very category of Deity – Class entirely by itself; hence the State cannot acquire either the Deity or its property.”

Referring to the Supreme Court decision in Ismail Faruqui, Justice Agarwal further stated: A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere even in open, unless the right to worship at a particular place is itself an integral part of that right, i.e., the place is of a particular significance, its alienability cannot be doubted.[5] Implicit in Justice Agarwal’s reasoning is that the offering of namaz by Muslims is not as significant to their religion as is worship at the birthplace of Ram for Hindus. [6]The holding suggests that the individual right to worship is an inferior right to the Hindu’s collective right to worship at the site where god was ostensibly born.

Similarly, in Shirur Mutt Case; the Supreme Court posed itself the question “What is the line to be drawn between what are matters of religion and what are not?”. [7]The idea that religion referred to one’s relationship to god or a higher being was rejected in light of the fact that some religions such as Jainism and Buddhism do not have a belief in a higher god. The Court collapsed the distinction between belief and practice. While it recognized that religion had its basis in a system of beliefs or doctrines, it was also more than this system. The Court stated that, “A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion” In the case of Durgah Committee, Ajmer v. Syed Hussain Ali, Justice Gajendragadkar stated that the test excluded those practices, which “though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself”. Further stated that, in order for a practice to be regarded as a part of a religion it had to be regarded by that religion as essential and integral to its faith’. [8]With these words the Court established itself as the gatekeeper of religion and would take upon itself the role of determining what was ‘real’ religion as distinct from mere superstition. [9]In the contemporary moment, core religious practices have come to be identified in Supreme Court decisions as based on foundational documents and the construction of a common Hindu belief and culture. While the earlier cases tended to offer a wider understanding of religion as including rituals and superstitious practices, the Supreme Court gradually whittled down the scope of what constitutes religion by introducing a requirement that the practice must have a scriptural or textual basis. In the process a juridically constructed “Rational Hinduism” has come to define the parameters of legitimate faith.[10]

Justice Agarwal proceeded to articulate how the fundamental right to freedom of religion gets established and protected. He stated and further added, once such belief gets concentrated to a particular point, and in totality of the facts, we also find no reason otherwise, it partakes the nature of an essential part of religion particularly when it relates to a matter which is of peculiar significance to a religion. It, therefore, stands on a different footing. Such an essential part of religion is constitutionally protected under Article 25. Having held that the Hindu parties had established their fundamental right to worship at the site on the grounds that it was an essential feature of their faith, Justice Agarwal addressed the other arguments of the Muslim parties. He proceeded to hold that the Muslim parties had not proved that Babur had title over the land nor had they successfully challenged the argument that the construction of the mosque failed to adhere to the principles of Islam. Hence, he declared that the structure was not a legitimate mosque and that it was non-existent. He held that the area under the dome had to be given to the idols, the inner courtyard to be shared between Hindus and Muslims and the outer courtyard to be shared between the idols and Nirmohi Akhara. However, he also stated that the Muslim parties should be given at least a third of what the other parties were being given, and requested the government to ensure land was made available for such a purpose. This last move was more of an act of Solomonic justice, rather than based on the facts and legal questions raised in relation to possession and title.[11]

D. BINARIES OF RELIGION

The Republic India is turning out to be an especially fraught moment for one of its founding values: the equal participation and protection of individuals belonging to all faiths. This value is often called secularism, or more likely Indian secularism. But those labels do not do justice to the uniquely creative and challenging task that the Constitution’s framers took upon themselves with respect to religion. As we pause to celebrate the longevity of India’s remarkable experiment with democracy, we ought also to ask ourselves some hard questions about the relationship between labels and values, ideals and realities. [12]Supreme Court has been actively involved in the construction of the religion that is to be recognized and, in the process, enacted a series of erasures as well as a tended to homogenize religious categories. The doctrine of essential practices is reflective of a “secular rationality” that has emerged with the modern state and in the process, it has rearticulated religion and its content. In other words, rather than being opposing ideologies or understood as unalterable essential concepts, secularism and religion have both been mutually constitutive. Freedom of religion needs to be seriously engaged with to expose how secularism is serving to advance the project of anti-democratic majoritarian politics. These politics are increasingly staking a claim to define and determine the contours, features, and limits of the legal and political management of religious difference through Indian law and politics. There is a pressing need to re-appropriate the right to freedom of religion to argue for a legal and political order that defends the ways of life of Muslims and others who do not share the Hindu Right’s majoritarian impulses. The Supreme Court verdict in the Babri Masjid-Ramjanmabhoomi land dispute case in Ayodhya goes a long way in cementing the social fabric of the country. The developments before and after the delivery of the judgment on November 9 inspire hope that we Indians eventually rise to the occasion and embrace harmony, peace and mutual self-respect for each other’s religion and sentiments. This is a dispute which has literally cost thousands of lives, not to mention the massive economic loss that accompanied the many riots and conflagrations. It has, however, been resolved through a process of adjudication, regarding the conclusions of which there may certainly be misgivings, but the judicial process was established as a fair one. Each side got all the opportunity they required for presenting evidence and for arguing their side. Religious diversity undoubtedly requires the protection of diverse methods of offering worship and performing religious ceremonies. However, that a method of offering worship unique to one religion should result in the conferral of an absolute title to parties from one religion over parties from another religion in an adjudication over civil property claims cannot be sustained under our constitution. This would render the law, which ought to be the ultimate impartial arbiter, conferring a benefit on a party with respect to her or his legal claims, not on the basis of the merits of a particular case, but on the basis of the structure or fabric of the religion to which they belong. [13] It is on the basis of the deep entrenchment of religion into the social fabric of Indian society that the right to religious freedom was not made absolute. The adjudication of civil claims over private property must remain within the domain of the secular if the commitment to constitutional values is to be upheld. Over four decades ago, the constitution was amended and a specific reference to its secular fabric was incorporated in the preamble.[14] Secularism cannot be a writ lost in the sands of time by being oblivious to the exercise of religious freedom by everyone.  [15]

E. CONCLUSION

Under our constitution, citizens of all faiths, beliefs and creeds seeking divine provenance are both subject to the law and equal before law. Every Judge of this court is not merely tasked with but sworn to upload the Constitution and its values. The Constitution does not make a distinction between the faith and belief of one religion and another. All forms of belief, worship is equal. Those whose duty it is to interpret the Constitution, enforce it and engage with it can ignore this only to the peril of our society and nation. The Constitution speaks to the judges who interpret it, to those who govern who must enforce it, but above all, to the citizens who engage with it as an inseparable feature of their lives. August 5, 2020 will be a historic day. But our political leaders must note that the Ramayana was also a way of life for every one; it was also about goodwill, love and respect. It is regrettable that even now there are some, which includes a section of the media, still continuing to debate the issue. They must stop and instead use their efforts to ensure more unity in India, irrespective of faith and religion. The Essential Practices Doctrine does not promote secular governance. It can, however, promote the equal participation and protection of individuals from all faiths in the life of the nation, as the nation was intended to be. Like many other aspects of India’s legal infrastructure that are often puzzling or frustrating, it is more concerned with the spirit of the Constitution than with the labels we have occasionally attached to it. The conferral of juristic personality is a legal innovation applied by courts in situations where the existing law of the day has certain shortcomings or such conferral increases the convenience of adjudication. In the present case, the existing law is adequately equipped to protect the interests of the devotees and ensure against maladministration without recognising the land itself as a legal person. Hence, it is not necessary to embark on the journey of creating legal fictions that may have unintended consequences in the future. None of this is to say that the judgment must not be criticised. Criticism of court judgments is a healthy democratic practice. It is the principle of the inviolability and inevitability of the legal process that has to be protected and projected. The verdict needs to be presented popularly as a benefit of secularism, as per which a temple will be built at long last, but without any bloodshed or acrimony. This has to be an example for any such future movement or demand, that the movement has to appeal to the state and its instrumentalities for justice and not to the streets.

[1] Donald Eugene Smith, India as a secular state (1963). Pg- 142.

[2] High Court of Judicature at Allahabad (Lucknow Bench), on September 30, 2010.

[3] (Agarwal, J.) Aligarh Historians Society, History and The Judgement of the Allahabad High Court, in the Ramjanmabhumi–Babri Masjid Case III–IV (2010).

[4] Sri Adi Visheshwara v. State of Uttar Pradesh, 1997 (4) S.C. 124

[5] A.I.R 1995 S.C 605 (India).

[6] Ayodhya, (2010) All. H.C. at 2617 (Agarwal, J..Vol. 12).

[7] Madras v. Sri Lakshimindra Thirtha Swamiar of Sri Shirur Mutt, (1954) S.C.R. 1005,1025 (India)

[8] (1962) 1 S.C.R. 383

[9] Shri Govindlalji Maharaj v. The State of Rajasthan and Others, (1964) 1 S.C.R. 561, 622–23 (India).

[10] Mrinalini Sinha, 18-25 Colonial Masculinity, (1995)

[11] A to Z of Ayodhya Verdict by Seema Chishti, The Indian Express, November 10, (2019).

[12] The unique goals and challenges of Indian Secularism. Deepa Das Acevedo, Hindustan Times (Jan 29,2020).

[13] -M. Siddiq (Ram Janmabhoomi Temple-5 J.) v. Suresh Das (2020) 1 SCC 1

[14] -M. Siddiq (Ram Janmabhoomi Temple- 5 J) v. Suresh Das, (2020) 1 SCC 1.

[15] -M. Siddiq (Ram Janmabhoomi Temple- 5 J) v. Suresh Das, (2020) 1 SCC 1.